People v. Lipscomb

Where defendant was convicted of aggravating fleeing or attempting to elude a police officer and served his sentence of 18 months, but a review of the evidence showed that the State failed to prove that defendant was driving 21 miles per hour over the speed limit, the appellate court, pursuant to Supreme Court Rule 615(b)(4), reduced defendant’s conviction to a misdemeanor of fleeing or attempting to elude a police officer with a sentence of 365 days served.

Appeal from the Circuit Court of Cook County, No. 10-CR-5399; the Hon. James L. Rhodes, Judge, presiding

Michael J. Pelletier, Alan D. Goldberg, and Jonathan Yeasting, all of State Appellate Defender’s Office, of Chicago, for appellant.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Harris and Simon concurred in the judgment and opinion.

OPINION

PIERCE JUSTICE

¶ 1 Following a bench trial, defendant Jerold Lipscomb was convicted of aggravated fleeing or attempting to elude a police officer (625 ILCS 5/11-204.1(a)(1) (West 2010)) and sentenced to 18 months in prison. On appeal, the defendant asserts the State did not sufficiently prove beyond a reasonable doubt the aggravating factor of traveling at least 21 miles per hour over the legal speed limit. We vacate defendant's conviction and enter judgment of conviction on the lesser charge of misdemeanor fleeing or attempting to elude a police officer.

¶ 2 At trial, Detective M. Coleman testified that on February 20, 2010 at approximately 3 a.m. he responded to a call of multiple shots fired in the area of 142nd and Grant Streets in Dolton, Illinois. Coleman was in full uniform and driving an unmarked squad car, equipped with emergency lights, which was inspected prior to his tour. After arriving on the scene, he turned off Grant Street and began going eastbound on Anne Street, heading toward Oak Street. While approaching Oak Street, Coleman observed a dark-colored car occupied by three black males and driven by defendant traveling south on Oak Street. The car turned westbound on Anne Street, almost striking Coleman's vehicle. Coleman made a U-turn, positioned his car behind defendant's car, and activated his emergency lights in an attempt to curb the car. At some point during the pursuit, Coleman looked at his speedometer and it read 55 miles per hour. He testified the speed limit in this residential area "was 15 to 20 miles per hour." Coleman did not offer any testimony relating to defendant's speed during the pursuit. Defendant did not curb his car, and Coleman radioed other officers to inform them that he was pursuing defendant. Coleman caught up to defendant's car after driving "more than half a block" on Anne Street, and pursued him for another half block southbound on Grant Street. Two marked squad cars responded to Coleman's radio broadcast and assisted Coleman in boxing in defendant's car, with one squad blocking the front end, a second squad blocking the back end, and then Coleman pulling up along the driver's side of defendant's car.

¶ 3 After defendant's car was stopped, he observed defendant hand the backseat passenger a foot-long semiautomatic submachine gun. The passenger jumped out of the car and ran into a nearby yard. Coleman pursued the passenger, but never apprehended him; however, the gun was recovered. The court acquitted defendant of charges relating to the gun, but convicted him of aggravated fleeing or attempting to elude a police officer without explanation.

¶ 4 On appeal, defendant asserts the State failed to prove that he traveled at least 21 miles per hour over the legal speed limit where the State's sole witness, the arresting officer, gave ambiguous testimony about the speed limit of the location of the pursuit, only testified as to his speed while catching up to defendant, and failed to testify that the speedometer on his unmarked car was accurate. Defendant has already served his 18-month sentence, but asks the court to reverse the felony conviction and enter judgment on the lesser offense of misdemeanor fleeing or attempting to elude a police officer.

¶ 5 It is fundamental that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged. People v. Carpenter, 228 Ill.2d 250, 264 (2008). When a defendant challenges the sufficiency of the evidence to sustain his conviction, the relevant question on review is whether, after considering the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill.2d 1, 8 (2011). The trier of fact determines the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence, and this court will not substitute its judgment for that of the trial court on these matters. People v. Collins, 214 Ill.2d 206, 217 (2005). If, after a careful examination of the evidence, we "are of the opinion that the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, we must reverse the conviction." (Internal quotation marks omitted.) People v. Hernandez, 312 Ill.App.3d 1032, 1036 (2000). Although the determinations of the trier of fact are given great deference, they are not conclusive. People v. Ortiz, 196 Ill.2d 236, 259 (2001). We will set aside a criminal conviction if "the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." Id.

¶ 6 Aggravated fleeing or attempting to elude a police officer is committed "by any driver or operator of a motor vehicle who flees or attempts to elude a [police] officer, after being given a visual or audible signal by a [police] officer and such flight or attempt to elude is at a rate of speed at least 21 miles per hour over the legal speed limit." 625 ILCS 5/11-204.1(a)(1) (West 2010). Here, the only element in dispute is whether the evidence proved beyond a reasonable doubt that the defendant was traveling at least 21 miles per hour over the legal speed limit.

&para; 7 Coleman testified that the speed limit in the residential area where the chase occurred was 15 to 20 miles per hour. Therefore, for purposes of proving an element of the charged offense, the State had the burden to prove defendant's speed exceeded the speed limit (maximum 20 miles per hour) by 21 miles per hour, i.e., defendant's speed was at least 41 miles per hour. The parties agree that proof of a defendant's speed has been established by means of a radar gun (People v. Abdallah, 82 Ill.App.2d 312, 316 (1967)), by a stopwatch (People v. Wilson, 97 Ill.App.3d 505, 507 (1981)), by pacing the defendant's vehicle (People v. O'Malley, 356 Ill.App.3d ...

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